Anchorage Joint Venture v. Anchorage Condominium Ass'n

• Citation: 670 P.2d 1249
• Decision Date: 03 February 1983
• Docket Number: No. 82CA0676,82CA0676
• Parties: ANCHORAGE JOINT VENTURE, Plaintiff-Appellant, v. ANCHORAGE CONDOMINIUM ASSOCIATION, James Walker, Bruce Waddle, Bruce Paul, John L. Del Mar, and Arnold Cook, as Officers and Board of Managers, Defendants-Appellees. . I
• Court: Court of Appeals of Colorado

Page 1249

670 P.2d 1249

ANCHORAGE JOINT VENTURE, Plaintiff-Appellant, v. ANCHORAGE CONDOMINIUM ASSOCIATION, James Walker, Bruce Waddle, Bruce Paul, John L. Del Mar, and Arnold Cook, as Officers and Board of Managers Defendants-Appellees.

No. 82CA0676.

Colorado Court of Appeals Div. I.

Feb. 3, 1983.

Rehearing Denied March 24, 1983.

Certiorari Denied Sept. 26, 1983.

Richard S. Hays, Denver, Alan G. Clausen, Dillon, for plaintiff-appellant.

Brownstein, Hyatt, Farber & Madden, Richard S. Bayer, Denver, for defendants-appellees.

STERNBERG, Judge.

This is an appeal from an order dismissing the complaint filed by Anchorage Joint Venture (AJV) seeking damages from Anchorage Condominium Association (the Association). We affirm.

AJV owned an irregularly shaped parcel of real estate in the town of Dillon upon which it desired to construct a condominium complex. In at least two respects such construction would violate ordinances of the town. Therefore, AJV applied for variances from these ordinances from the Board of Adjustment. Feeling its property would be adversely affected by the development, the Association appeared at the hearing before the Board to oppose the variance applications. The Board granted the variances sought by AJV.

After the approval of the variances, the Association filed a C.R.C.P. 106(a)(4) action seeking judicial review of the Board of Adjustment's action. The complaint was jurisdictionally defective because it named the Board but did not also list AJV as a defendant. Thus, that suit was dismissed for failure to join an indispensable party. Because thirty days had expired from the Board's action, the suit, under the provisions of C.R.C.P. 106 then in effect, could not be amended, and the dismissal was a final disposition.

Contending that the C.R.C.P. 106 action had caused delay in the project which resulted in increased legal fees, costs and interest on an outstanding debt, AJV filed this suit seeking damages from the Association. AJV asserted that the failure to join it as a party in the C.R.C.P. 106 action, was inter alia, negligence, an abuse of process, and tortious interference with its business expectancies. The trial court granted the Association's motion to dismiss the complaint, holding that the Association had the right to petition the government for redress by means of a C.R.C.P. 106 action and that there were no circumstances present which would justify limiting that right. We agree.

I.

Addressing the principal substantive issue raised by this case, we disagree with AJV's contention that the court erred in holding the Association was constitutionally privileged in filing the C.R.C.P. 106 action.

The petition filed by the Association challenged the approval of a variance from the zoning ordinances of the town of Dillon by the Board of Adjustment. C.R.C.P. 106(a)(4) is the vehicle to be used when an inferior tribunal exercising judicial or quasi-judicial functions is alleged to have exceeded its jurisdiction or abused its discretion. Van Huysen v. Board of Adjustment, 38 Colo.App. 9, 550 P.2d 874 (1976).

In its petition, the Association alleged that the Board of Adjustment had abused its discretion by granting a variance. In particular, it alleged that the Board did not give adequate notice of the hearing, it did not make the findings necessary to support its decision, and the decision was not supported by the evidence. We hold that the Association had a constitutionally protected right to institute that proceeding.

The right of access to the courts seeking redress from actions of a governmental entity is one aspect of the right to petition guaranteed by the First Amendment. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). As distinguished from suits between private parties, interested persons...